Earlin O'neale Claimant v Sebastian O'neale Defendant [ECSC]
| Jurisdiction | Grenada |
| Judge | Henry, J |
| Judgment Date | 18 January 2013 |
| Judgment citation (vLex) | [2013] ECSC J0118-6 |
| Date | 18 January 2013 |
| Court | High Court (Grenada) |
| Docket Number | CLAIM NO. GDAHMT 2005/0046 |
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
IN THE HIGH COURT OF JUSTICE
CLAIM NO. GDAHMT 2005/0046
Henry, J.: The parties were lawfully married to each other on 27th day of November 1982. Unhappily, issues arose between them and the wife (hereinafter "the petitioner") filed for divorce on 29th March 2005. The decree nisi was granted on 31st October 2006 on the ground that the parties had lived separate and apart for a period of at least five (5) years preceding the presentation of the Petition. The decree was made final and absolute on 12th December 2006. The petitioner now seeks a property adjustment order in the following terms:
Henry, J-
(1) An order that the petitioner be declared to own one-half or such other share as the court deems just of the property housing the matrimonial home situate at Mt. Gay in St. George's.
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(2) An order that the Respondent do pay the Petitioner one half-share or such other share as the court deems fit of the assessed value of the said matrimonial home.
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(3) In the alternative, an order that the said house be sold and the proceeds divided as the court shall deem fit.
Like so many other couples, even though the marriage subsisted for almost twenty years (excluding the period of five years separation), the matrimonial home is alleged to be the only asset of the marriage.
The petitioner's evidence is that after the marriage the couple lived with the respondent's mother. In April 1988, a parcel of land measuring sixteen thousand and twenty three square feet (16,023 sq. ft) located at Mt. Gay was purchased for the sum of $28,040.25. Legal title to the land was held in the name of the respondent. Construction of the home started sometime in 1989 with financing of $60,000.00 secured by a mortgage on the land from Scotia Bank. The parties moved into the matrimonial home in 1990. There they lived as a family.
There were no children born to the couple during the marriage. The respondent is twenty years older than the petitioner and has two children from a first marriage. The petitioner has a daughter from a previous relationship, who lived for some time with the couple at the matrimonial home. Sometime in 1998, the marriage broke down and the parties established separate lives within the former matrimonial home. The petitioner finally left the former matrimonial home in August 2005 after it had been badly damaged by Hurricanes Ivan and Emily.
Petitioner's evidence is that the property remained in the sole name of the Respondent until June 1999 when the respondent by deed of gift conveyed the property to his children Jude and Gemma O'Neale.
The petitioner asserts that during the marriage she worked with the Ministry of Finance from 1983 up to the hearing of the application. She describes the respondent as an Educator who during the marriage earned much more than she did. She admits that it was respondent who made the repayments of the mortgage to Scotia Bank. She also admits that he also paid most of the utility bills with the exception of one year when the respondent was ill and in the USA seeking medical treatment. She asserts however, that it was she who purchased groceries and that as a couple they pooled their resources towards the smooth running of the home. The petitioner cites a joint account that the couple at one time operated. She asserts that after issues arose between them, respondent transferred the funds to his name.
The petitioner's further evidence is that after the passing of Hurricane Ivan, because of the severe damage to the home, the parties were forced to exist in a small downstairs apartment without running water or electricity. The insurance company, she says, paid to the respondent a lump sum under the policy of insurance. However, he refused to fix the said matrimonial property. Each time it rained the place would get wet, so eventually she was forced to leave the matrimonial home. It was only after she left that the respondent affected the much needed repairs.
The petitioner continues to be employed with the Ministry of Finance. She states her monthly gross salary as $3,279.00. However, after deductions the salary advice from the Government shows her net salary as $1,771.19. From this she pays monthly rent of $750.00. Her estimated monthly food bill is approximately $500.00. In addition she pays utility bills and transportation cost.
Petitioner states that in light of the above, it would be just for the court to make a property adjustment order as prayed for.
The respondent, now a retired School Principal, describes the petitioner in these words: "when I met the petitioner she was penniless and destitute. I educated her to get a job in the public service…" According to the Respondent's evidence, the parties lived at his parent's home even prior to their marriage from 1st September 1982. He states that when the Government offered retirement in 1987, he seized the opportunity and opted for retrenchment; that when he got his gratuity payment he used same to purchase the lot of land at Mt. Gay in April 1988. He admits that construction began in 1989 and was financed partially by a loan of $60,000.00 from Scotia Bank. He asserts that to assist with the construction, he sold two lots of land at Marigot, St. John. The house was completed and they moved into the house in March 1990.
With regard to his income, he states that after retirement from teaching, he worked with Huggins Motor Department for approximately eight years. He affirms that he made the mortgage payments to Scotia Bank in addition to payment of all utility bills, except for Cablevision, which he asserts was installed for the benefit of petitioner's daughter. In addition, he asserts that he also paid for the groceries and all the upkeep of the house. He agrees that for the year he spent undergoing medical treatment in the USA, the petitioner paid for the upkeep of the house. He denies, however, the petitioner's assertion that she purchased groceries, except for some items of groceries purchased for her daughter. He also denies that there was ever any pooling of resources towards the smooth running of the home.
With regard to the joint bank account, the respondent admits that one was opened in their joint names in 1994. However, he asserts that the account was never operated as a joint account, in that the petitioner never deposited any money into the said account. According to him in 1996, he discovered that the petitioner had attempted to make a withdrawal from the account. In his view, since all the funds in the account had been deposited by him, the petitioner had no right to the funds.
With regard to the alleged payments he received from the Insurance Company, the respondent's evidence is that he received a total of $27,000.00, but that the estimated damage to the house was "in the vicinity of one hundred thousand dollars ($100,000.00)". According to his evidence, after the petitioner left, he made partial repairs to the house with assistance from his children.
Finally, the respondent asserts that because the petitioner had no expenses with regards to the running of the matrimonial home, the respondent was able to and did purchase in 2001 a parcel of land situated at Mardigras measuring 12,688 sq. ft. at a price of $41,171.00. The respondent asserts no claim to any share in this lot. He states that he has a pension of $1,700.00 per month plus an NIS pension of $300.00 to $400.00 per month. In the circumstances, he opines, it would be otiose to make a property adjustment order as requested by the petitioner.
In June 1999, by a deed of gift, the respondent conveyed the former matrimonial home to his two children, Jude and Gemma O'Neale, in fee simple as tenants in common in equal shares. According to the deed, the transfer was subject to the outstanding mortgage balance of $22,900.00. The Donees covenanted in the said deed of gift to pay the outstanding monies and interest due under the said mortgage.
Counsel for the respondent concedes that the transfer of the property would have to have been subject to the wife's interest. He asserts, however, that she is entitled to only a small percentage of the value. He points to the fact that it was respondent's gratuity that was used to purchase the land; that respondent was...
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